The defendant was indicted for manslaughter in the first degree. Manslaughter in the first degree is homicide when not justifiable or excusable, and "When committed without a design to effect death:
"1. * * *, or,
"2. In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon. * * *" (Penal Law, section 1050.)
The indictment charged that the defendant "feloniously, wilfully, unlawfully, and wrongfully, but without a design to effect the death" of one Felix Wrzeszenski, made an assault upon him "by means of a dangerous weapon and firearm commonly known as a pistol or revolver" which he did "fire off, shoot, explode and discharge" at, towards and against said W. inflicting serious wounds from the effects of which he died.
It appeared at the trial that the defendant fired two shots at W., both of which passed through his left lung. W. died at a hospital about ten days thereafter. The attending physician testified in substance that W. failed to obey the instructions given him and that in his judgment, if W. had obeyed the instructions so given him he would have recovered. Other testimony was received *Page 286 to show that W. died from the wounds but a question of fact thus arose as to whether W. died from the wounds inflicted by the defendant.
It is provided by section 444 of the Code of Criminal Procedure as follows:
"Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime. Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence."
Assault in the first degree is defined by section 240 of the Penal Law as follows:
"A person who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another: 1. Assaults another with a loaded firearm, or any other deadly weapon, or by any other means or force likely to produce death; or * * *
"Is guilty of assault in the first degree."
The defendant was found guilty of assault in the first degree. An appeal was taken to the Appellate Division from the judgment entered upon the verdict and the judgment was there unanimously affirmed. (People v. Santoro, 190 App. Div. 56.)
The question whether the defendant could under the indictment be found guilty of assault in the first degree, did not arise during the trial prior to the charge of the court. At the close of the testimony for the People counsel for the defendant asked that the indictment be dismissed and the defendant discharged because the People failed to prove the defendant guilty of thecrime set forth in the indictment or of any crime. The motion was denied. No direct evidence was offered by the People as to the intent with which the defendant shot W. It *Page 287 was a fact to be inferred from the facts proven. The defendant however, was asked by his counsel whether he intended to kill W. Counsel for the People objected because the intent with which the shooting was done is a question to be determined by the jury. The objection was overruled and the defendant answered, "No, sir. I did not intend to kill him."
The court in charging the jury read to them the provisions of the Penal Law defining assault in the first, second and third degrees, and at the close of the charge said: "If there is a reasonable doubt in your mind he (defendant) is entitled to the benefit of that doubt and your verdict should be acquittal. If there is no reasonable doubt you may bring in a verdict under any of the provisions I have stated to you." No exception was taken.
Counsel for the defendant said: "I ask your honor to charge the jury that simply because the jury have any doubt as to whether the defendant committed a greater crime would be no reason whatever for bringing in a verdict of assault unless they found that the defendant had committed the crime of assault." The court charged as requested.
No suggestion was made on behalf of the defendant that the jury could not legally find him guilty of assault in the first degree. Subsequently the jury came into court and asked to be informed as to the punishment prescribed for assault in the first degree.
The court complied with the request of the jury, whereupon counsel for the defendant said: "I ask your honor to charge that the defendant cannot be found guilty of assault in the first degree," but the court refused so to charge.
I think the belated claim in behalf of the defendant is nevertheless in time to raise the question as to his conviction under the indictment.
It was a rule of the common law that when an indictment *Page 288 charges an offense which includes within it another inferior offense or one of a lesser degree, the defendant could be convicted of the inferior offense or one of lesser degree.
In England the rule did not permit finding a defendant guilty of a misdemeanor on a charge of a crime constituting a felony. This distinction, which was based upon certain privileges accorded a person charged with a felony, was not applicable in this state. The rule of the common law that prevailed in this state was to prevent the prosecution from failing when the alleged facts and circumstances charged in the indictment were proved, if such proofs made out a crime though of an inferior degree. (People v. Jackson, 3 Hill, 92.) The inapplicable averments in the indictment were treated as surplusage. (People v. White, 22 Wend. 167, 175.) The rule is now included in sections 445 and 444 of the Code of Criminal Procedure. Section 445 provides: "In all other cases (cases defined in section 444) the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment."
Section 444 of the Code of Criminal Procedure, from which we have quoted, is more comprehensive than the common-law rule or the rule as provided by said section 445. It is the apparent intention and purpose of the statute to permit the conviction of a person indicted for the crime really committed by the overt acts set forth in the indictment. While intention is of material, and in many cases of commanding importance in determining whether a person is guilty of a crime and of the degree thereof, there must in at least all crimes of violence, be overt acts upon which to base an indictment and conviction.
It is expressly provided in said section 444 of the Code of Criminal Procedure that if upon a trial for murder ormanslaughter, it is not proven that the acts complained *Page 289 of were the cause of death "the defendant may be convicted of an assault in any degree constituted by said act, andwarranted by the evidence."
A person on trial for a crime is apprised by the indictment and the statutes of the fact that he is not only charged with the overt acts mentioned in the indictment and with the crime specifically mentioned therein, but also with all other inferior degrees thereof and of an attempt to commit the crime, and that if the indictment is for murder or manslaughter and the act complained of is not proven to be the cause of death he is thereby charged with and may be convicted of assault in any degree constituted by the act charged in the indictment and warranted by the evidence.
The indictment does not include a count of a higher nature. If it appears from the testimony received at the trial that a crime of a higher nature than that charged in the indictment has been committed the court may direct the jury to be discharged and all proceedings on the indictment to be suspended and may order the defendant to be committed or continued on or admitted to bail to answer any new indictment which may be found against him for the higher offense. (Code of Criminal Procedure, sec. 400.)
If the defendant is not indicted for the higher crime at the next term of the court, the court must again proceed to try the defendant on the original indictment. (Code of Criminal Procedure, sec. 401.)
Section 444 of the Code of Criminal Procedure does not confine the right to convict the defendant under indictment of manslaughter in the first degree to any inferior crime consistent with the intent and facts charged in the indictment for manslaughter in the first degree but of any degree constitutedby the acts charged in the indictment and warranted by theevidence.
The plain language of section 444 includes assault in *Page 290 the first degree. The language of the section is too plain for interpretation. There is no constitutional provision in this state which prevented the legislature from enacting section 444 of the Code of Criminal Procedure.
The principal authorities referred to by the defendant and otherwise coming to our attention, among which is State v.Thomas (65 N.J.L. 598), where different conclusions have been reached, are cases where the common-law rule was considered unaffected by express statutory provisions constitutionally enacted.
The decision in People v. Huson (114 App. Div. 693) was reversed (187 N.Y. 97). The question under consideration was not considered or passed upon by this court in the Huson case. I do not approve the conclusion reached by the Appellate Division in that case.
In People v. McDonald (159 N.Y. 309, 314) the defendant was indicted and convicted of the crime of murder in the first degree. This court in reversing the judgment because the trial court refused to charge the jury that it should not convict the defendant of assault in the first degree or assault in the second degree, said: "An assault, in any of its degrees, we think, is not a necessary legal element in a charge of murder in an indictment in substantially the same form as was in use under the common law, and until some statute authorizes a conviction forthis offense under an indictment charging homicide, the courtsare not required to submit such a question to the jury."
Section 444 of the Code of Criminal Procedure was thereupon amended by the legislature so as to read as hereinbefore quoted. It has been suggested that the amendment was passed because of the statement of this court in the McDonald case.
In Keefe v. People (40 N.Y. 348, 355) the statements of this court in the opinion are, particularly in view of the present provisions of the Code of Criminal Procedure, applicable if not controlling in this case. In that case the plaintiff in error was indicted for murder in the first *Page 291 degree. The indictment contained a single count for murder drawn as required by the common law. He was convicted of murder in the second degree which was then (1865) defined to be the killing of a human being without a design to effect death by a person engaged in the commission of a felony other than that of arson in the first degree. The conviction was sustained. This court, referring to the statute then existing which provided that upon an indictment for an offense consisting of different degrees the jury may find the accused not guilty of the offense in the degree charged in the indictment and may find such accused guilty of any degree of such offense inferior to that charged in the indictment or of an attempt to commit such an offense, say: "I think the true construction of the statute is, that when the act for which the accused is indicted is the same act for which he is convicted, the conviction of a lower degree is proper, although the indictment contains averments constituting the offence of the highest degree of the species of crime, and omits to state the particular intent and circumstances characterizing a lower degree of the same crime. If this be the true construction, it follows that, under an indictment for murder in the first degree, the accused may be convicted of any degree of murder, or manslaughter, for the unlawful killing of the identical person charged by the identical means charged in the indictment. * * * It is a general rule in criminal pleading, that when the act done is criminal only when done under a particular state of facts or circumstances, the existence of such facts and circumstances must be averred in the indictment, but the section of the statute under consideration has in effect provided that when the indictment is for a crime consisting of different degrees and depending upon the intention of the accused and the circumstances under which the act was committed, and the indictment charges such act to have been committed with the intent, and under the circumstances constituting the highest *Page 292 degree of the crime the defendant may be convicted of any lower degree, and consequently when there is a failure of proof of any part essential to a conviction of the higher degree, proof may be given of facts constituting a lower degree of the same crime, although the latter facts are not charged in the indictment, and the defendant may, upon such proof, be rightly convicted of the lower degree. * * * We have seen that the statute authorizing a conviction of a lower degree of the same crime, upon an indictment for a higher degree, makes the evidence authorizing such conviction, competent. Otherwise the statute would be inoperative. I the more readily adopt this construction, as I cannot see that the accused can be prejudiced thereby. He is informed by the indictment, of the particular crime charged, and of the means used in its perpetration, and that it was committed with the intent, and under the circumstances constituting the highest degree of that crime. He, therefore, comes to this trial not only prepared to show, if he can, that he is not guilty of the particular degree charged, but of no lower degree of the same crime."
It was not error for the court to refuse to charge that the defendant could not be found guilty of assault in the first degree.
I do not think that the "felony upon the person or property of the one assaulted" mentioned in section 240 of the Penal Law included the attempt to commit a homicide. The felony therein intended is one independent of the assault with intent to kill, such as mayhem, rape or other crime not necessarily included in the assault.
This court in Foster v. People (50 N.Y. 598, 602), in which Foster had been indicted for murder in the first degree and in considering murder in the second degree as then defined by statute, say: "It is claimed on the part of the people that the words `engaged in the commission of any felony,' in the statute, do not include cases in which the killing resulted from intentional violence to *Page 293 the person killed, and where, although the intent was to commit a felonious assault there was no intention to kill; or, in other words, where the felony intended although not the felony of homicide, was the very act of personal violence which caused the death, that this is not a felony within the meaning of the statute."
In that case Foster was insisting that striking the deceased on the head with a car hook, which was the overt act shown therein, might have been with intent to commit mayhem which is something different from the crime of assault, and the court further say: "What the true construction of the statute is, is immaterial in this case, unless the evidence warranted the inference, or unless the jury might have found from the evidence, that the prisoner when he struck the deceased intended to commit some felony other than the homicide with which he is charged." (p. 603.)
It was found in that case that the prisoner did not intend to commit any other felony and it is not claimed in the case now before us that the defendant intended to commit a felony upon W. other than the assault with or without intent to kill.
Such an assault did not constitute "a felony upon the person or property" of W. within the meaning of section 240 of the Penal Law. (Foster v. People, supra; People v. Hüter, 184 N.Y. 237;People v. Spohr, 206 N.Y. 516.)
It is also urged that the judgment is void because the court instructed the jury on Sunday and the judgment of conviction was entered on that day.
The case was tried on Saturday and submitted to the jury at eleven P.M. on that day. The jury continued in deliberation until after twelve o'clock when they came into court and stated that they were unable to agree upon a verdict and asked to be informed of the punishment prescribed for a person convicted of assault in the first degree. Counsel for defendant then asked the court to charge the jury that the defendant cannot be found *Page 294 guilty of assault in the first degree, and the court refused to make the charge as hereinbefore stated. The jury retired but soon returned with a verdict against the defendant which was received. The defendant then waived any delay in pronouncing sentence and sentence was pronounced.
It is provided by section 5 of the Judiciary Law (Cons. Laws, ch. 30) that "A court shall not be opened, or transact any business on Sunday, except to receive a verdict or discharge a jury. * * *."
The statement made to the jury in answer to their request and the refusal of the court to charge the jury as requested by the defendant's counsel were incidental to the deliberation by the jury and the lawful receipt of their verdict. Any action taken by the trial court contrary to the provisions of the Judiciary Law as quoted was with the approval and acquiescence of the defendant and such a waiver on his part as to prevent his taking advantage of such action at this time. (Roberts v. Bower, 5 Hun, 558.)
The judgment of conviction should be affirmed.
HISCOCK, Ch. J., CARDOZO and ANDREWS, JJ., concur with COLLIN, J.; POUND and CRANE, JJ., concur with CHASE, J.
Judgment of conviction reversed, etc.